The criminal sections of the Provincial Court of Madrid -the largest and one of the most influential in Spain- have adopted this Friday the criterion that final convictions for sexual offenses must be reviewed down if the “Montero law” or “only yes is yes law” contains more favorable sentences for the accused, even when the sentence to be reviewed could have been imposed with the new norm.

Among the same criteria was the one adopted last Tuesday by the Provincial Court of Zaragoza and it is the one that those of Vizcaya, Granada, Córdoba, Málaga and Valladolid will also follow.

In Madrid a non-jurisdictional plenary session was held this Friday in which the criterion of downward revision of the sentence when the ‘Montero law’ is more favorable has been supported by 32 votes in favour, eight against and nine abstentions.

[Primer revés al decreto del fiscal general: los jueces de Zaragoza impondrán la pena más favorable al reo]

Although it is not binding, it will be the guideline that the criminal sections of the Madrid Court will follow for the sake of legal certainty and until the Supreme Court rules on the sexual freedom law promoted by the Ministry of Equality, which is giving rise to to downward revisions of sentences imposed on sex offenders, some of whom have been released.

In practical terms, the criterion adopted means that if a rapist was finally sentenced to the minimum sentence in accordance with the previous regulations and six years in prison were imposed, the sanction must now be reviewed because the current minimum sentence is four years. And this regardless of whether the penalty imposed before is within the range provided for violation by the ‘law of only yes is yes’ (from four to 12 years in prison).

The position established by these seven Provincial Courts contradicts the criteria given to prosecutors by the attorney generalÁlvaro García, in a decree issued last Monday.

The Prosecutor’s Office considered that the fifth transitional provision of the 1995 Penal Code contains a consolidated criterion that can be applied to the ‘Montero law’, in which it has omitted to establish its own transitional regime.

In accordance with the fifth transitory provision, the prison sentences established in the new norm are not considered more favorable when the previous sentence already imposed is also taxable according to the current punitive range.

[El fiscal dice al Supremo que la pena que pide para los jugadores del Arandina cabe en la ‘ley del sí es sí’]

Until now, only the Provincial Court of Logroño has shared the prosecutor’s criteria and it has not reviewed any sentence upon reaching the conclusion that the sentences imposed in the cases examined fell within the punitive range of the ‘Montero law’.

The rest of the Hearings that have ruled consider that article 2.2 of the Penal Code must be applied in any case. This precept establishes that Those penal laws that favor the accused shall have retroactive effect.even though when it entered into force a final sentence had passed and the offender was serving a sentence.

Almost 500 cases subject to review

In the Audiencia of Madrid there is 447 final convictions for sexual crimes that are being carried out and are subject to review after the entry into force of the ‘Montero law’.

Ex officio, the sections have already begun the review of 121. At the request of a party, the review of another 55 is being processed.

As a consequence of the review carried out so far the sentence has been reduced in 20 cases.

In seven of these proceedings, the release has been ordered. because the convicted person has already served the sentence in accordance with the new ‘law of yes is yes’, more favorable in such cases.

However, one of the convicts who has benefited from the ‘Montero law’ continues to serve a sentence for other crimes, so he has not been effectively released.

Grenada: the most favorable norm

The unification of the two criminal sections of the Audiencia de Granada took place on Thursday. The magistrates agreed to review the firm sentences in execution “applying in these cases the provision that is most favorable to the prisoner.”

The magistrates will review the cases in which it is considered that “regarding the sentence imposed, taking into account the legal classification of the proven facts, it is more favorable sentence to be imposed under the new norm“, that is, the ‘law of only if is yes’.

Sentences in which compliance with the sentence is suspended will not be reviewed, “without prejudice to doing so in the event that the suspension is revoked and before proceeding to the effective enforcement of the sentence whose suspension has been revoked.”

Sentences whose custodial sentence has been executed will not be reviewed either, even if other pronouncements of the ruling are pending to be executed.

It has also been agreed that during the review process all parties to the proceedings will be heard, including victims if they are.

Malaga: ex officio

The five sections of the Provincial Court of Malaga also decided on Thursday that they will carry out an ex officio examination of the final sentences and will reduce those sentences for which the new law implies a more beneficial sentence for the convicted person.

The president of the Audiencia de Málaga, Lourdes García, explained that the review, on a case-by-case basis, will be carried out in accordance with article 9 of the Constitution and article 2 of the Penal Code.

In Malaga there are a hundred sentences subject to review, reports Efe.

Vizcaya also contradicts the prosecutor

The Provincial Court of Vizcaya also contradicts the criteria of the attorney general. After a meeting to unify positions held this Friday, the magistrates of the criminal sections have considered that “the extensive application of a transitional rule provided for in another law is not appropriate”, referring to the fifth transitional provision of the Criminal Code.

The board of magistrates has also agreed that the ex officio review proceeds and that the final sentences that are being fulfilled “will be reviewed on a case-by-case basis, in accordance with the general principles of criminal law.”

Las Palmas: case by case

Also today the criminal sections of the Provincial Court of Las Palmas have debated the review of sentences after the entry into force of the law for the comprehensive protection of sexual freedom.

The magistrates have agreed that “the review of the sentences imposed for crimes of a sexual nature will not proceed ex officio, unless it is required by law or there are doubts that it could be subject to a possible modification that favors the offender.”

This means that the review will be agreed upon when, in application of the previous rule, the sentence has been a sentence greater than the maximum sentence provided for in the new law for the same conduct.

The second agreement points out that, in other cases, “it will be necessary to be on the specific case to individualize the appropriate penalty”. That is, when the sentence in accordance with the previous legislation was the minimum, and now that minimum is lower, it will be assessed on a case-by-case basis to see if the new law is more favorable.

Two of the three criminal sections consider, contrary to the criteria of the attorney general, that the fifth transitory provision of the Criminal Code is not applicable.

Source: Elespanol

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J. A. Allen

Author, blogger, freelance writer. Hater of spiders. Drinker of wine. Mother of hellions.

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